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Tuesday, 23 May 1972
Page: 1912


Senator MURPHY (New South WalesLeader of the Opposition) - I accept what the Minister has frankly said, but is there not every reason to delete the clause from the Bill? The only excuse for an averment provision is that it is absolutely necessary to meet some special circumstances, because the averment provisions run counter to the whole trend of our law - that before a person can be made to pay some such amount it must be proved that he owes it. The averment provision is designed to remove that necessity for proof and, in effect, to require a person to disprove that he owes a certain amount. I am conscious of the fair approach of the Min'ster but we have raised these questions before when dealing with rural Bills. I would hope that honourable senators oppo site who are supposed to support a Liberal-Country Party philosophy would understand that these kinds of provisions are quite contrary to that philosophy. In essence they are contrary to the rule of law which is part of the philosophy of all parties in this chamber, and honourable senators opposite ought to understand that when raising these issues. This is not simply a party political exercise.

The amendment is designed to eradicate from the legislation the provisions which we think are dangerous in the precedents that they set. I hope that more attention will be paid not only by the Minister - and he is now paying attention - but ako by others in the chamber to the provision about which we are complaining. If there is no necessity for the provision, we ought to see to it that it is not included. If it could be justified for a particular industry as the matter could not be handled otherwise, we could then see the argument for an averment provision. However, if it is not necessary for an industry in the ordinary course of its affairs such an averment provision should not be included. I hope that the message will sink in that there ought to be opposition to the creeping in of this provision.

There ought to be opposition to its extension from one piece of legislation to another. Although they were justified in other legislation by saying that there was a necessity for them, this is a clear case, fairly conceded by the Minister, in which it really is unnecesary. Why has it been included? In some rare cases difficulties might arise but that is not an excuse for the provision. I think it is wrong to say that as a matter of course an averment provision will be included in the measure simply because it was included in other measures although it is not necessary in this instance. It ought not to be included and we will continue to oppose averment provisions. We think that they should not be in other legislation and it is quite clear that there is no justification for their inclusion in this measure.

I know that the Minister has paid attention to these matters, as has the Department of Primary Industry. We welcome that attention, but we remain convinced that such provisions should go out. Unless there is an overwhelming case for the inclusion of this kind of provision we think that it ought to go out and that honourable senators opposite should join us in that viewpoint. The Government would have a stronger case if in the circumstances of a particular industry it said; 'we really need this provision here, because we are dealing with this particular industry'. Justification breaks down if this course is followed in the case of every industry whether or not the provision is needed. These things should not be regarded as technicalities. Averment provisions have been regarded as extremely important parts of the law. This principle should not be broken down just because these are rural Bills. We find that there is a tendency to include such provisions for the sake of convenience when really they are not warranted. We suggest this legislation would be considerably improved if the Government agreed to delete this provision.







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